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I can’t recall any specific regulation about this but there is a Safe Work Australia code of conduct that says anyone using hazardous chemicals in a workplace has to check with the manufacturer about correct safety procedures. This will legally apply to some strata plans but not all of them.
Beyond that, the owners corporation has a duty of care to residents that would generally apply to the use of chemicals and the same safety measures would make good sense and may well be applicable legally.
You can find the workplace safety code of conduct HERE.
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@PeterC said:
Taking some well accepted reference is probable better than reinventing the wheel via a set of novel standing orders.
Hmmm … I don’t disagree with anything else you’ve said, except that last bit. Taking a well-accepted reference is certainly a lot better than nothing.
However, EC meetings are very unusual in that owners are legally allowed to attend but may not speak unless invited to do so. Most ECs work on the basis that once the beast is unchained, it’s free to roam – i.e. Mr Bloggs may be invited to discuss the matter of his garden gnomes, but once he has been unfettered, can he also speak about Mr Jones’ window frames? And how exactly does he ask to speak in the first place if he isn’t allowed to speak?
General Meetings tend to be more like a Town Hall meeting than a committee meeting and I think different rules again would apply there.
I can’t see the harm in people who’ve been through a few strata meetings coming up with a formula that Owners Corps can latch on to, especially when their meetings are being disrupted and/or unproductive.
Having said all that, I note that Joske (Which you can buy HERE for $96) claims to have “a thorough presentation of statutory law as it relates to meetings of unit title and strata title companies throughout Australia.” If it does, it’s worth every cent and I withdraw my previous comments.
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@kittycat said:
We have a similar problem with our strata complex … there is not much we can do. Strata sends a letter every now and then, they stop doing it for a few weeks and then start again.A horrible way to deal with it is to let their tyres down, scratch their car and then hopefully they won’t do it again!!!
For repeat offenders there is a lot you can do. Notices To Comply apply to the NEXT offence, rather than the last one, so they can be fined.
Repeat offenders could have a CTTT order taken against them, where the maximum fine goes up fro $550 to $5500. You could also use the threat of an order requiring them to use the garage for its purpose.
Finally, and I hate to get all StrataNanny about this, but scratching cars, letting down tyres, and putting nails in them are all criminal damage. If the person drives off with a flat tyre, has an accident and hurts themselves or, even worse, someone else – you are in a life-changing world of pain when one of your neighbours dobs you in.
Have a look at this page to see the legal avenues for rubbing these problems out. All you have to do is put one owner through the mill and everyone else will soon get the message.
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@ccbaxter said:
When an unsympathetic chairman at our AGM i.e. the strata manager, let’s the predictable abuse, personal attacks and disruptive interjections run, is a forceful request for a ‘point of order’ enough?
I’m not expert in meeting procedures but I would have thought you needed to have Standing Orders in place for a point of order to have any weight.
I keep thinking we should have a set of standing orders available for Owners Corps to adopt but I wouldn’t know where to start.
One very useful meeting rule is that each speaker only gets to speak once until such times as eveyone who wants to say something has had their say. It’s a little bit ponderous but it takes the heat out of some of these shouting matches when the call for silence is based on an agreed rule rather than the say-so (or not) of one person.
On the general question of insufficient information, our strata managers provide a comprehensive explanation of the breakdown of each budget item or proposal but it takes them about a week to compile the agenda because of that.
It’s obviously more expensive than your strata manager turning up with a few line items on a spreadsheet but everyone in the building is entitled to be informed – if they want to be. A motion for your next general meeting asking that all such matters be accompanied by a full budget might solve this problem in the future.
Meanwhile, I would stick by the idea of getting enough support to bounce the current proposals until such times as everyone has had a chance to look at the costings.
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@scotlandx said:
The short answer is no, an adjudicator does not have jurisdiction to grant declaratory relief. They can make orders to settle a dispute or complaint, but that isn’t declaratory. Re the notice to comply, what by-law did they say was being breached? Was it in relation to your communications, because I can’t think of a by-law that relates to that.Scotty has makes two very good points here – and the second one reveal a miconception about Notices To Comply.
An NTC is not a fine, it simply states that the Owners Corp (as represented by the EC or the strata manager) believes you have breached a by-law by your action and warns you that if you continue to breach the by-law, then you may be subject to further action and a possible fine. It has to state the by-law that it believes you have breached.
Thus, as the CTTT adjudicaor said, if you don’t believe you have breached this by-law the easiest way to deal with this is to ignore the NTC and let the Owners Corp make the running on proving their case. You don’t have to prove them wrong until that happens. If you feel the need to respond, then you can send them a letter saying that you don’t feel you have breached the by-law and, consequently, you will not be changing your behaviour.
Like Scotty, I am curious to know what the by-law was that they claimed you had breached. There is no constitutional right to freedom of speech in Australia but I’ve never heard of any by-law that prevents owners from communicating with the EC or other owners.
Let’s see a copy of the by-law that you are supposed to have breached – to satisfy our curiosity, if nothing else.
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As I said on the radio just the other day, there are no strata police going around checking up on who is doing what and whether or not it is illegal. If you have an issue with something, you have to raise a complaint either internally or through the Fair Trading/CTTT system.
To take the example of the EC office-bearers granting themselves use of the common property for parking. This would quite reasonably be seen as a “perk” that office-bearers are not strictly entitled to.
If the by-law says you can’t park on common property, then they are in breach of their by-laws and any owner can seek redress through the CTTT.
If the by-law says you can’t park on common property without permission, and they have given themselves permission, that’s something you sort out at your next general meeting where you ask the whole building if they are happy for office-bearers to have these perks.
Some people might think that the Chair and secretary do enough unpaid work for the building that this perk is entirely justified and leave them to it. Others might object on principle.
But there has to be flexibility to allow communities to set their own standards. If an elderly owner, for instance, was visited regularly by a family member and they had to get permission to park somewhere no one else was allowed to, would that be something you would pursue?
I know of people who reluctantly took a resident to task for consistently leaving their wheelchair in the entrance lobby rather than take it up in the lift to their apartment where it was “in the way”. The EC was within their rights to ask for it to be moved – but were they morally right?
In the case of the permission for pets being denied where others have been allowed, the hot button is the word “unreasonable”. If, for instance, a tenant who had permission from their landlord was denied approval to have a pet in a building where owners were allowed to have pets, that would be unreasonable and discriminatory.
I am told that the CTTT in NSW doesn’t use precedent from other cases but does look at established practice in individual buildings. And I believe this has been used to allow owners who have always treated common property as if it was their own – gardens outside ground-floor units, for instance – to continue to do so.
But some issues are only problems if someone chooses to make them a problem. And if a practice is discriminatory, surely it’s better for each community to set its own standards rather than have some over-bearing catch-all law to cover every eventuality.
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@excathedra said:
To Jimmy: I note your arguments, which have merit. I’m not a finance expert, but hope to bounce the issues off one or two who do have relevant expertise but don’t make their incomes from lending money. As before, nothing personal!
No personal offence taken – it’s a tricky area and I’m not an accountant.
Lannocks have been doing great work in Far North Queensland, helping strata owners hit by floods who were uninsured (because of previous floods). However, I know they are keen to present themselves as a third financial option – alongside prepaid levies and special (emergency) levies – and I think their value compared to special levies is quite clear.
The other issue is less obvious without sitting down and punching in their numbers, including interest rates, and comparing the pre-pay with the post-pay columns.
Hopefully Paul Morton of Lannocks will come on board and add his inside knowledge to the discussion.
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@excathedra said:
Agreed — but the need for repairs can emerge literally overnight, and liquidity can be an asset in such a situation.
True, and I really understand and accept where you’re coming from, but how much liquidity do you really need?
I was generally referring to buildings where they cover themselves for every possible eventuality and even then don’t spend the money in case something else comes up. Your situation is quite different where you have a clear idea of what you are going to need to fix in the near future.
Regarding issues like your emergency sewage works, all you need is enough money to get the work started and a line of credit with a lender to pay for it when it’s finished. It would be well worth talking to someone like Lannocks or Macquarie Bank – both of whom offer strata loans – to find out if that really would be any more expensive than keeping the ‘rainy day’ money in the bank.
Loans have to be repaid and, if the EC have sought to make heroes of themselves by keeping levies down to a minimum, there could be a nasty shock at the next AGM as the proverbial chickens come home to roost.
The simple answer to that is that there should be no shocks or surprises. You give owners the choice between putting the money aside or finding it when it’s needed. If they go for the latter, you explain the costs involved and then put all the agreements in place so you can trigger the loan when required. Note that neither of these scenarios require special levies.
It … makes sense to be sure that you are covered for reasonably forseeable expenditure even if a precise time cannot be put to it.
Define ‘reasonably foreseeable’. I don’t disagree with your natural caution but I think there’s a balance. In the unlikely event of anyone ever putting me in charge of the finances of a strata plan, I would have part of the sinking fund for work we KNEW we needed, a small emergency fund for things we didn’t know might occur and a line of credit for unexpected major contingencies.
Like the man said, there are things we know, things we know we don’t know and things we don’t know we don’t know. For the latter two categories of strata repairs, I’d be tempted to spend money on a parachute rather than a safety net.
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I think the simplest thing is to canvass all your neighbours and tell them that there is not enough information for anyone to come to an informed opinion on the night, regardless of whether people support the projects or not.
And at the meeting you can put up an amendment that a vote on any of the projects should be delayed until such times as fully-costed budgets are made available to all owners.
Just make it a simple procedural motion that doesn’t accuse anyone of anything untoward. And make sure you have enough support in the building before the meeting.
Just a word to the wise: it helps a lot if you turn down the invective a bit when you are asking for support. Don’t let a right and wrong debate turn into a ‘me Vs them” battle.
A simple amendment proposed at the meeting to delay the votes to another General Meeting will seem reasonable and fair to most people.
By the way, you can propose amendments at a general meeting provided they don’t seek to alter the fundamentals of the motion. Delaying a vote is a valid amendment where, for instance, suggesting the money be spent on something else wouldn’t be.
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Our friends at Lannocks strata finance company recently talked me through why having an accumulated sinking fund is a waste of money.
Let’s say you have $10,000 in the sinking fund and you have a job that will cost $10,000. If you sit on that for a year you make, say 4.5 percent on interest but you pay tax on that so you end up with about $10,300.
Meanwhile the job cost goes up by, say, by the CPI of 2.5 percent, so it now costs $10,250, but there is also the lost ‘opportunity’ cost – if individual owners had kept that money rather than putting it in the bank, they could have raised at least 4.5% in interest. That brings the actual cost of sitting on the money for a year up to $700.
Thus, in those very simple terms, sitting on your sinking fund is costing owners money.
But there are other less tangible costs.
Maintaining and improving common property adds the value of everyone’s homes so that’s another opportunity cost.
Also, even if individual owners didn’t save the money that they weren’t putting into levies, they had the ‘feel good’ factor of spending it.
And finally, if the work isn’t being done, you don’t get the positive emotional return of seeing the money you have paid being put to good use.
Now, I may have fudged the figures a bit here and there but it’s quite clear that sitting on a ‘healthy’ sinking fund is a huge waste of money and has no tangible benefit for the strata scheme.
The buildings are not at their best and unless you have a big sign out the front saying how much you have in your sinking fund, it will not attract potential purchasers.
The sinking fund is not an emergency fund – it’s a repair and maintenance fund.
And if there are emergencies, our friends at Lannocks will step up with loans which they say make more economic sense than sinking funds in the first place.
It makes all sorts of sense to spend your sinking fund – that’s what it’s there for.
By the way, in reference to KiwiPaul’s posting below, you have to lodge proxy votes 24 hours before the meeting.
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There is a method for removing disruptive EC members which is to hold an General Meeting of the Owners Corporation, get a special resolution vote in which no more that 24 percent say no, and declare the position vacant. You wouldn’t do this unless you had all your ducks in a row first.
Or … one of the stronger minded individuals can sit down with this person and explain to them that their behaviour is disruptive and if they don’t moderate it, you will call such a meeting and their behaviour and its effects will be explained to everyone in the building after which they will be expelled from the EC.
Or, you could raise a motion at the EC to censure this owner, a resolution which will go on the record. Again, you might suggest this to them before you do it, to see if they moderate their behaviour.
Finally, you could adopt Standing Orders of the type suggested by Peter C below, outlining who gets to talk and when. We’ve discussed creating a set of Standing Orders here on the website for a while – maybe it’s about time we did something about it. Watch this space.
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@Willie said:
Can someone provide me with an idea of the process and costs involved if a matter proceeds to the CTTT after a tenant/owner failing to comply with a Notice to Comply?Click HERE – it’s all spelled out with links to the forms you might need.
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To address the original question – how do you prevent the use of Skype – the answer is implied in Whales’ response … it’s more a matter of how you you allow it or otherwise.
There is no provision under the Act, as Whale said, for Skype to be used. It’s simply a matter of the people at the meeting agreeing to use it. However, strictly speaking, the Skyper would have to have arranged a proxy at the meeting to vote on their behalf.
One word of caution, though. I am told that while Skype allows greater participation, it also has a tendency to focus the whole meeting on the person who is on the screen, rather than people who are present at the meeting.
It’s a natural response to the presence of the screen but it can, somewhat ironically, allow the person who’s not there to dominate the meeting.
I’d rather see EC meetings podcast – so at least people can see what’s going on – than set up basically the same technology for the benefit of one person.
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You could send a letter to the EC to be submitted at the meeting with a request that it be published with the minutes, pointing out the errors.
You could also write to the EC telling them that the motion is defamatory and if they don’t withdraw it, you will sue (these days, strata insurances tend not to cover defamation claims).
Or you could gather the signatures of one third of owners opposing the motion and asking for it to be removed from the agenda since no decision taken on it would be valid (due to one third of owner opposing it).
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I am reluctant to jump on any contributor’s opinion but there are times when allowing people to express their thoughts means that wrong and misleading information is being sent out.
So let me make this clear – if you are talking about lot owners asking for exclusive use of common property for whatever reason, then the ONLY way to do that legally is by the creation of a special resolution by-law.
It might be easier to just pass a motion a general meeting but that approval has no standing in strata law in NSW and can only lead to problems down the line. I will express my reasons for this below (and I have included the relevant sections of the law) but after that, this matter is CLOSED. I am stating FACTS here – not the way things should be but how they are.
@kiwipaul said:
If you create a bylaw granting permission you would have to be very careful about the wording as a bylaw is permanent change and passes on to new owners of the lot when sold. A bylaw can be cancelled but only with a 75% vote of the OC (not sure if the recipient has to agree as well (as in the case of a Exclusive use bylaw)).You’d have to be a bit dim to have a by-law that wasn’t properly worded – you get a strata lawyer to write it and the lot owner who is seeking exclusive use pays for it (and the cost of the meetiong held to approve it).
And no, the special resolution by-law can’t be rescinded without the approval of the lot owner – it’s their protection against the Owner’s Corp changing their mind and withdrawing permission for something that has cost them time and money to establish.
Also with a bylaw after a number of years maybe the owners does thing you don’t agree with and he tells you he has a bylaw authorizing this, you would then have to go to CTTT to obtain a ruling and as I keep hearing the CTTT decision are a lottery and having a bylaw would significantly increase his chances of winning (even if it didn’t specifily grant exclusive use)
The by-law will only give permission to do something specific – if the owner did something different then they would still be in breach. An exclusive use by-law is not a carte blanche. It has its own set of parameters specific to the work being done. I think you are much more likely to have problems with something that has no firm legal basis, such as a simple approval that can be withdrawn.
With a simple motion granting permission, this could be withdrawn at any time (if unhappy with whats being done) with simple majority and tell the owner to restore area to original condition. If he goes to CTTT he has no bylaw to explain his actions and any motion he produces as proof of his action is only valid so long as it’s not revoked by the EC.
The lot owner –
a) needs to compensate the Owners Corp for any use of common property
b) they need to be locked into a maintain and repair contract for any future issues that might arise, and
c) they need to to have certainty when they are selling their property that they had the right to do what they have done. A simple vote of approval will not provide this.
Also if you say major alteration have already been done on just a motion, and you have let it go what are the chances of obtaining a successful ruling if you apply different rules to different owners without good reasons.
There is no logical basis for this assertion. Owners corporations and executive committees, especially, change all the time. If you go to the CTTT and say things have been done incorrectly in the past but we are doing the right thing now, you would expect them to follow the law and if they didn’t you could appeal to your district court on exactly that basis – the law, not opinion.
This is what the law says – the Owners Corp can make or allow changes and can give owners permission to use common property But it MUST be by a special resolution …
65A Owners corporation may make or authorise changes to common property
(1) For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
(a) add to the common property,
(b) alter the common property,
(c) erect a new structure on the common property.
(2) A special resolution that authorises action to be taken under subsection (1) in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.
(3) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
(4) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes such a by-law.
(5) A by-law made for the purposes of this section:
(a) may require, for the maintenance of the common property, the payment of money by the owner concerned at specified times or as determined by the owners corporation, and
(b) must not be amended or repealed unless a special resolution has first been passed at a general meeting of the owners corporation and the owners corporation has obtained the written consent of the owner concerned.
(6) The provisions of sections 52 (3), 54 (2) and (3) and 55 apply to a by-law made for the purposes of this section in the same way as those provisions apply to a by-law to which Division 4 of Part 5 of Chapter 2 applies.
65B Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner of a lot to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by special resolution passed at a general meeting of the owners corporation.
(2) A licence may be granted subject to terms and conditions.
Note. Division 4 of Part 5 of Chapter 2 enables owners corporations to make by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.
Please, no more debate on the right and wrong way to do this. The law could not be more clear.
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